IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20169
Summary Calender
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LUCILLE L. LAPAGLIA,
Plaintiff-Appellant,
VERSUS
AIR LIQUIDE AMERICA CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(96-CV-2216)
_________________________
September 11, 1997
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Lucille Lapaglia appeals a summary judgment entered on her age
and disability discrimination claims against Air Liquide America
Corporation (“ALAC”). Finding no error, we affirm.
I.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
Lapaglia worked as the Fleet Department Secretary at Big Three
Industries from 1983 until February 1994, performing numerous
administrative duties, including, among other things, leasing,
licensing, titling, and registering the company’s fleet of
vehicles. She received training and was given greater amounts of
responsibility as she gained experience. She excelled in her job,
and her superiors spoke highly of her.
Sometime prior to 1994, ALAC acquired Big Three Industries and
merged it with one of its subsidiaries, Liquid Air. The new
company implemented a plan for downsizing, and Lapaglia was
released. Shortly after her release, Lapaglia learned that ALAC
was hiring new employees. Although she applied several times for
various positions, she was never rehired.
Lapaglia filed the instant action in July 1996, alleging that
ALAC refused to hire her because she is fifty-three years old. She
also contends that she is being denied employment because of her
relationship and association with her husband, an individual with
a known disability. The district court granted summary judgment
for ALAC.
II.
Lapaglia applied for, and was rejected for, ten different
positions. She alleges violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., and the Age
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Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.,
corresponding to each denial.
We reviews a grant of summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
A.
Lapaglia’s first claim arises from her application for
employment with ALAC as a licensing and fuel tax assistant. She
was rejected for this position in March 1994 but waited until
November 22, 1995, to file her Charge of Discrimination with the
Equal Employment Opportunity Commission (“EEOC”). Because she
filed her claim well after the 300-day statute of limitations, see
29 U.S.C. § 626(d)(2), the claim is time-barred. See Fisher v.
Procter & Gamble Mfg. Co., 613 F.2d 527, 540 (5th Cir. 1980).
B.
We review Lapaglia’s remaining claims under the burden-
shifting format of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). See Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396
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(5th Cir. 1995) (applying McDonnell Douglas to ADA actions);
Lindsey v. Prive Corp., 987 F.2d 324, 326, n.5 (5th Cir. 1993)
(applying McDonnell Douglas to ADEA actions). Under this approach,
the plaintiff must first make out a prima facie case of
discrimination. See McDonnell Douglas, 411 U.S. at 802. If he
meets this burden, the burden then shifts to the defendant to
proffer a legitimate, nondiscriminatory reason for its decision.
See id. If the defendant is so successful, the burden then reverts
to the plaintiff to prove with “a new level of specificity” that
the defendant’s reason is a pretext for discrimination. St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 516 (1993).
To prove her prima facie case, Lapaglia must demonstrate
(1) that she belongs to a protected class; (2) that she applied and
was qualified for a job; (3) that despite her qualifications, she
was rejected; and (4) that after her rejection, the position
remained open while the employer continued to seek applicants from
persons of complainant’s qualifications. See McDonnell Douglas,
411 U.S. at 802. Among the jobs for which Lapaglia applied was a
position in the fleet department similar to her previous job with
Big Three Industries. She learned about the position from a friend
and former supervisor, Jim Mew, who instructed Lapaglia to contact
Ray Sidenblad, the current fleet manager, about the position.
Although Lapaglia did so, Sidenblad never returned her call.
Lapaglia now asserts that discrimination alone explains his
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failure to return her calls. In fact, ALAC submitted evidence
demonstrating that no one was hired to fill this position. The job
was posted by Sidenblad’s predecessor, but he decided eventually
that the position was unnecessary. Because Lapaglia failed to
prove that after her rejection the job remained open and that
similarly qualified applicants were considered, she has not made
out her prima facie case.
Lapaglia next applied for a position as a telephone operator.
After being informed by a current employee of ALAC that one of the
telephone operators had relocated, Lapaglia contacted Ron Speer
about the position. Speer never returned her call.
Again, Lapaglia asserts boldly that discrimination is the only
explanation for his actions. ALAC proffered uncontested summary
judgment evidence demonstrating that the currently-employed
operator changed locations only, and thus a new position never
became available. Lapaglia has failed, therefore, to establish an
element of her prima facie case.
The next dispute involves a temporary position with the
cryogenics department at ALAC. The parties dispute whether
Lapaglia or Mew contacted the other first about the job, but in any
event, Mew informed Lapaglia that he was authorized to hire only a
temporary worker to fill the position. Lapaglia rejected this
position, because she desired full-time employment.
Although Lapaglia admits that she turned down the position,
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she argues that ALAC’s “temporary position story” was concocted to
coerce her into rejecting the job. Nothing but wild speculation
and conjecture support her allegations. Because rejection is an
element of her prima facie case, Lapaglia’s discrimination claim
fails.
Lapaglia’s next claim stems from the same temporary cryogenics
position. Six weeks after she rejected the temporary position with
the cryogenics lab, Mew received permission to convert the
temporary position into a permanent one. Mew informed Lapaglia of
this change and allowed her to submit a resume. Subsequently, Mew
decided to hire permanently Virginia Holcomb, the same person who
had held the temporary position, noting that Holcomb had done an
excellent job and that her retention would help reduce ALAC’s
training costs.
Assuming arguendo that Lapaglia has satisfied the prima facie
case, Mew’s explanation for the Holcomb hire is sufficiently
neutral and non-discriminatory. Under the McDonnell Douglas
approach, Lapaglia must now prove with “a new level of specificity”
that the reason offered by ALAC is a pretext for discrimination.
See McDonnell Douglas Corp., 411 U.S. at 802. As she has presented
no evidence of pretext, Lapaglia has failed to carry this burden.
See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1996
(en banc) (noting that to avoid summary judgement in an ADEA case,
the plaintiff must put forth substantial evidence that (i) creates
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a fact issue as to whether each of the employer’s stated reasons
was what actually motivated the employer and (ii) creates a
reasonable inference that age was a determinative factor in the
actions of which plaintiff complains).
Lapaglia also applied for four positions with ALAC that were
advertised in the Houston Chronicle. One of the positions
specifically requested that applicants speak French, which
Lapaglia did not. Thus, she was not qualified for this position.
Another position advertised in the Houston Chronicle was a
secretarial position with Marty Buckley. Consistent with ALAC’s
policy to source candidates from within the organization whenever
possible, Buckley did not consider external applicants. Lapaglia
does not dispute Buckley’s decision to promote internally, nor has
she proffered any evidence suggesting that Buckley’s decision to
hire an internal candidate was a pretext for improper reasons. The
district court correctly granted summary judgment.
With respect to the other two positions that were advertised
in the Houston Chronicle, Lapaglia asserts only that she was never
hired for them. She has not demonstrated that she was qualified
for them, nor that after she was rejected the position remained
open to others with similar qualifications. Without such evidence,
Lapaglia has failed to prove her prima facie case.
Lapaglia also applied for a secretarial position with Gregg
Alexander, a position that expressly called for an executive
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secretary with skills in the areas of treasury and finance.
Notably absent from Lapaglia’s resume were such skills.
Furthermore, Lapaglia’s resume was devoid of any executive
secretarial experience in the last twelve years.
But even assuming arguendo that Lapaglia was qualified for the
position, ALAC has proffered a legitimate, nondiscriminatory reason
for hiring Cathy Howell, an external applicant. A Certified
Professional Secretary, Howell had worked for the previous seven
years as a secretary or executive assistant to corporate executives
and had experience working in the finance and treasury areas. She
also had worked with professional accounting firms for seven of the
previous eight years.
Alexander proffered Howell’s outstanding qualifications as a
nondiscriminatory reason for his decision. Lapaglia has presented
no evidence suggesting that this reason is pretextual or that
creates an inference of discrimination. See Rhodes, 75 F.3d
at 994. She has failed, therefore, to create a fact issue
regarding this claim.
Lapaglia also applied for a secretarial position with Tim
Bruce, which position was ultimately filled by Judy Truelove, an
executive secretary for ALAC for the past seven years. Before
that, Truelove had worked six years as the administrative assistant
to the president of a real estate development company, and she had
almost fifteen years' experience as an executive secretary. In
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contrast, Lapaglia’s resume did not describe any executive
secretarial experience.
Except for Lapaglia, Bruce looked at internal applicants
only. ALAC proffers as its nondiscriminatory reason for not hiring
Lapaglia its policy of hiring the most qualified person for the job
and of promoting existing employees. Lapaglia has put forth no
evidence demonstrating that these reasons are pretextual.
Furthermore, Truelove is older than Lapaglia.
When Lapaglia discovered that Truelove had been promoted to be
Bruce’s secretary, she applied immediately for the vacancy left by
Truelove in Wayne Bowman’s office. She has offered no evidence,
however, that this position was ever posted or that anyone was ever
hired to replace Truelove. Because she has not carried this
burden, she has failed to establish her prima facie case for this
claim.
C.
Even assuming arguendo that Lapaglia has satisfied her burden
of presenting a prima facie case with respect to any of her claims,
she has presented no evidence suggesting that her denial for any of
the positions was based upon her age or her association with her
disabled husband. To prove pretext, Lapaglia first pointed to a
1992 executive meeting during which ALAC presented a single slide
that described the need to hire a computer systems person younger
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than age 35 and to enhance a pilot region team with “some young
high caliber people.” ALAC eventually deleted all references to
age in the slide show and never implemented the plan. Not only are
isolated, accidental, or sporadic discriminatory acts insufficient
to establish the existence of a pattern or practice, see Goff v.
Continental Oil Co., 678 F.2d 593, 597 (5th Cir. 1982), but
Lapaglia has failed to demonstrate any nexus between the positions
for which she applied and this purported evidence of age
discrimination, see Lo v. Federal Deposit Ins. Corp., 846 F. Supp.
557, 564 (S.D. Tex. 1994) (citing Turner v. North Am. Rubber, Inc.,
979 F.2d 55, 59 (5th Cir. 1992)) (stating that “to rise above the
level of a stray mark and constitute direct evidence of
discrimination, a remark must (1) be made by the decision maker or
one whose recommendation is sought by the decision maker; (2) be
related to the specific employment decision challenged; and (3) be
made close to the time to the decision.”), aff’d, 52 F.3d 1066 (5th
Cir. 1995).
Lapaglia also proffered a June 1993 memo that discussed the
changing work force and the need to entrust positions of
responsibility to young workers. This memo made no mention of any
forbidden hiring or employment practices, but rather identified the
need to bring into the fold new ideas, new business opportunities,
entrepreneurs, and creative hires to facilitate the company’s
urgent need to grow and increase growth in sales and profits. The
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memo described ALAC’s previous mindset of restricting important
responsibilities to employees over age 40 and suggested a change in
this mindset by entrusting younger employees with greater amounts
of responsibility. If anything, the memo supports an inference
that ALAC preferred older workers in the past. In any event,
absent Lapaglia’s demonstration of a nexus between the 1993 memo
and her failed hiring attempts in 1995, the evidence has no
demonstrated relevance to her claims. See Lo, 846 F. Supp. at 564.
Because Lapaglia has created no genuine issues of material
fact concerning any of her discrimination claims, we AFFIRM.
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